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Kempton v. Delhaize America Shared Services Group LLC

United States District Court, D. Maine

March 17, 2016




Plaintiff Nicole Kempton has sued her former employer, Delhaize America Shared Services Group LLC, and Hannaford Bros. Co. (collectively, “Hannaford”), alleging that it interfered with her rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C.A. § 2601 et seq. (2015). Kempton also alleges that Hannaford retaliated against her in violation of the FMLA and the Maine Whistleblowers’ Protection Act (“WPA”), 26 M.R.S.A. § 831 et seq. (2015). Hannaford has moved for summary judgment as to all claims. ECF No. 21. For the reasons set forth below, Hannaford’s motion is granted.


Nicole Kempton worked for Hannaford at the company’s store in Winthrop, Maine, from 2009 to 2012 as an Assistant Customer Service Manager. ECF No. 22 at 1; ECF No. 28 at 1, ¶ 1. She had no disciplinary problems until 2012. ECF No. 28 at 14, ¶ 1, ¶ 1; ECF No. 32 at 1, ¶ 1. Kempton’s immediate supervisor was the store’s Customer Service Manager, Ron Douglas. ECF No. 22 at 1, ¶ 1; ECF No. 28 at 1, ¶ 1. Kempton’s other supervisor was the store’s Associate Relations Manager, John Wellwood. Wellwood’s assistant was Lisa Buzzell.

A. Relevant Hannaford Policies

It is undisputed that in 2012, when most of the events at issue in this case occurred, Hannaford had an employee discipline policy known as its “performance counseling” policy, ECF No. 22 at 6, ¶ 32; ECF No. 28 at 6, ¶ 32, and a separate, but related, attendance and punctuality policy, ECF No. 28-21; ECF No. 22 at 5, ¶ 27; ECF No. 28 at 4, ¶ 27.

The performance counseling policy consisted of four progressive steps: Step One consisted of verbal counseling, ECF No. 22 at 6, ¶ 32; Step Two consisted of the employee’s first written notice, id.; Step Three consisted of the employee’s final written notice, id.; and Step Four consisted of the “[f]inal [d]isciplinary [a]ction (up to and including termination).” Id.

The parties do not dispute that the attendance and punctuality policy forbids unauthorized absences, leaving a shift early, or taking breaks early or late. ECF No. 22 at 5, ¶ 28; ECF No. 28 at 4-5, ¶ 28. However, they do dispute whether coming to work before the beginning of a shift constitutes tardiness under the policy- Hannaford contends that such an occurrence would count as tardiness, while Kempton contends that the policy does not include coming to work early as an occurrence or tardiness and therefore does not support Hannaford’s interpretation. Id.

B. Kempton’s FMLA Request

In 2011, Kempton’s husband contracted Lyme Disease and suffered various complications as a result. ECF No. 28 at 14, ¶¶ 2, 3. Kempton was granted intermittent FMLA leave in December 2011 in order to care for him. ECF No. 22 at 2, ¶ 5; ECF No. 28 at 1, ¶ 5. Hannaford first sent her a preliminary approval letter dated December 2, 2011, which stated that her FMLA leave was to begin on November 6, 2011, and end on November 6, 2012. ECF No. 22-2 at 1. Hannaford subsequently sent Kempton a second approval letter, dated December 21, 2011, which stated that the company had received certain required medical documentation and that as a result, it was amending the approved period of intermittent FMLA leave to six months, from November 6, 2011 to May 1, 2012. ECF No. 22-2 at 10.

In August 2012, Kempton received a third FMLA authorization letter from Hannaford. ECF No. 22-5; ECF No. 22 at 4, ¶ 17; ECF No. 28 at 3, ¶ 17; ECF No. 28-23 at 4, ¶ 14. However, this letter omitted the dates indicating when the period of leave would begin or end. ECF No. 22-5. Kempton asked Lisa Buzzell about the letter and was told that her FMLA leave for her husband was still in place and that no action was required. ECF No. 28-23 at 4, ¶ 14.

Although Hannaford’s December 21, 2011, approval letter stated only a six-month leave period, Kempton nevertheless utilized intermittent FMLA leave to care for her husband from December 2011 until shortly before her termination in November 2012, as evidenced by her deposition testimony, ECF No. 22-1 at 21, and multiple “call-in reports” which are written records dating from between May 2012 and October 2012 that reflect Kempton’s absences from work, ECF No. 28-36 at 33; ECF No. 28-37 through 28-44. The call-in reports contain either a notation stating “FMLA” or reference Kempton’s husband’s illness as the reason for her absence. See id.

On October 11, 2012, Kempton stopped by Buzzell’s office to inform her that she would not be staying to work her shift that day and asked Buzzell to “get the papers for her to extend her FMLA.” ECF No. 36-34. Buzzell refused, telling Kempton that she “could not do that for her[, ]” and instead gave Kempton a card containing the telephone number for Hannaford’s Associate Service Center, which Kempton could call directly in order to request the necessary documents. Id.; ECF No. 28 at 29, ¶ 51; ECF No. 36-36 at 2-3. On October 16, 2012, Buzzell informed Kempton that her FMLA leave had expired. ECF No. 28-30; ECF No. 28-23 at 4, ¶ 15.

C. Kempton’s Workplace Discipline

Kempton and Hannaford disagree about many of the pertinent facts surrounding the workplace discipline that Hannaford imposed upon her in 2012. Kempton alleges that in July 2012, she began receiving written discipline for utilizing FMLA time and for attendance issues that had never previously raised any concerns, such as arriving early for her shift and leaving early from her shift.[1] ECF No. 27 at 4 (citing ECF No. 28 at 15-16, ¶¶ 6-11). Hannaford asserts that the attendance and punctuality policy changed on February 5, 2012, in the midst of Kempton’s FMLA leave, and that the reason for Kempton’s employee discipline was the fact that she was leaving her shift early, not that she was arriving early. ECF No. 32 at 2-4, ¶¶ 7, 9.

Kempton also maintains that she was disciplined for infractions for which other employees were not disciplined. ECF No. 27 at 5. For example, Kempton maintains that other employees with similar attendance records received discipline after seven to twelve absences, whereas she was disciplined after only five absences. ECF No. 28 at 25, ¶ 41. Hannaford states that simply counting absences per employee is not as straightforward as it seems because under its attendance policy, “a multi-day, consecutive absence is only counted as a single occurrence if the absence is for the same reason.” ECF No. 32 at 22-23, ¶ 41. Hannaford also notes that at least one other employee received Step One counseling after five absences in a twelvemonth period, and received Step Two counseling after six absences in a twelve-month period. Id. (citing ECF No. 22-25 at 3).

Kempton also asserts that in late August 2012, Douglas met privately with her after she had requested an “accommodation for her schedule” related to her FMLA leave. ECF No. 27 at 5.[2] At the meeting, Kempton claims that Douglas complained about the FMLA time she had taken and told her that it was creating problems with other Hannaford employees. Id. She also claims that Douglas threatened to withhold his recommendation in the event that she tried to transfer to another Hannaford store located in Gardiner. ECF No. 28 at 20, ¶ 20.

Following the one-on-one meeting with Douglas, Kempton called “ISHARE, ” Hannaford’s human resources hotline, and complained that Douglas had spoken to her without a witness present. ECF No. 27 at 19-20; ECF No. 28 at 20, ¶ 21. Kempton maintains that she believed that conducting such a meeting without a witness present was a violation of company policy and illegal. Id. Immediately after registering her complaint via ISHARE, Kempton claims, she suffered further discipline and was prevented from taking FMLA leave to care for her husband. Id. Hannaford denies that Kempton suffered any retaliation because of her complaint. ECF No. 32 at 12-13, ¶ 21.

Kempton further claims that she was subject to “adverse employment actions” insofar as she received “criticism of her leaving early for FMLA issues, criticism of her interactions with other employees, criticism of her interactions with customers, changing schedules to make things difficult for [Kempton], repeatedly telling [Kempton] that nobody respected her, repeating hearsay without giving her specific examples of criticism, specifically not recommending [Kempton] for another position, making [Kempton] do work that other employees in the same position were not required to do, hyper review of [Kempton’s] attendance, and refusal to allow personal time which was within the manager’s discretion.” ECF No. 28 at 16, ¶ 12.

On October 8, 2012, Kempton received her Step Three final written notice at a meeting Douglas held with her, John Wellwood, and Assistant Store Manager Patti Therrien. ECF No. 28-31; ECF No. 28 at 18, ¶ 17; ECF No. 22-13. Douglas wrote an internal memorandum memorializing the meeting, ECF No. 28-31, which states that Kempton was being disciplined for leaving work early on October 3, 2012. Kempton asserts that she did not work on October 3, ECF No. 28 at 18, ¶ 17, and cites this as an example of Hannaford’s retaliation for her taking FMLA leave, ECF No. 27 at 10, ¶ 11 (“Plaintiff was disciplined for leaving work on a day she didn’t even work.”). Hannaford explains that Douglas’ reference to October 3 was a typographical error, and that she was disciplined for leaving work early on October 4, as reflected in the Step Three performance counseling form that Kempton received at the October 8 meeting. ECF No. 32 at 19-20, ¶ 35 (citing ECF No. 22-13 (stating that Kempton “worked less than ½ her shift . . . [on] 10/04/12”)).

More generally, Kempton also asserts that the Associate Resources Manager, John Wellwood, told her that the decision to take FMLA time was hers and that she simply needed to tell him when she wished to take such leave. ECF No. 28 at 27, ¶ 47. However, according to Kempton, Ron Douglas required that she tell subordinates, such as the store “shift leader, ” why she had to leave early or else her absence would not be authorized. Id. Kempton asserts that this placed her in the position of violating her privacy in order to avail herself of FMLA leave. Id.

Kempton’s Statement of Material Facts does not address the facts surrounding her termination, other than a reference to the fact that it occurred in November 2012. See Id. at 30, ¶ 54. Hannaford’s Statement of Material Facts asserts that the store manager, Lenny Plourde, met with Kempton on November 5, 2012, and told her that her employment was terminated in part for violations of the attendance policy but also for a breach of confidentiality, based upon Kempton allegedly having improperly spoken to an hourly employee regarding the termination of a cashier for excessive till shortages. ECF No. 22 at 10, ¶¶ 50, 51 (citing ECF No. 22-1 at 16). Kempton offered qualified responses to Hannaford’s statement of material facts 50 and 51, asserting that “Kempton stated that the reason for dismissal was attendance, ” ECF No. 28 at 9, ¶ 50 (citing ECF No. 22-1), and that “Kempton does not admit to violating company policy, yet that was one allegedly pre-textual reason given[, ]” Id. at ¶ 51 (citing ECF No. 28 at 24, ¶ 38; ECF No. 28-23 at 12, ¶ 38).


A. Federal Rule of Civil Procedure 56

Summary judgment is appropriate only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). In making that determination, a court must view the evidence in the light most favorable to the non-moving party. Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir. 2013). “[A] judge’s function at summary judgment is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (citation and quotations omitted).

B. Local Rule 56

Local Rule 56 defines the evidence that this court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment. First, the moving party must file a statement of material facts that it claims are not in dispute, with each fact presented in a numbered paragraph and supported by a specific citation to the record. See Loc. R. 56(b).

Second, the non-moving party must submit its own short and concise statement of material facts in which it admits, denies, or qualifies the facts alleged by the moving party, making sure to reference each numbered paragraph of the moving party’s statement and to support each denial or qualification with a specific citation to the record. Loc. R. 56(c). The non-moving party may also include its own additional statement of facts that it contends are not in dispute. Id. These additional facts must also be presented in numbered paragraphs and be supported by a specific citation to the record. Id.

Third, the moving party must then submit a reply statement of material facts in which it admits, denies, or qualifies the non-moving party’s additional facts, if any. Loc. R. 56(d). The reply statement must reference each numbered paragraph of the non-moving party’s statement of additional facts and each denial or qualification must be supported by a specific citation to the record. Id.

The court may disregard any statement of fact that is not supported by a specific citation to the record, Loc. R. 56(f), and the court has “no independent duty to search or consider any part of the record not specifically referenced in the parties’ separate statement of facts.” Id.; see also, e.g., Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010); Fed.R.Civ.P. 56(e)(2). Properly supported facts that are contained in a statement of material or additional facts are deemed admitted unless properly controverted. Loc. R. 56(f).


Kempton’s complaint contains three counts: (1) interference with her FMLA rights; (2) retaliation for taking FMLA leave; and (3) whistleblower retaliation in violation of the WPA, 26 M.R.S.A. § 831 et seq. (2015). ECF No. 9-3.

A. Count One - FMLA Interference Claim

In order to make out a prima facie case for FMLA interference, a plaintiff must show that (1) she was eligible for the FMLA’s protections; (2) her employer was covered by the FMLA; (3) she was entitled to leave under the FMLA; (4) she gave her employer notice of her intention to take leave; and (5) her employer denied her FMLA benefits to which she was entitled. Carrero-Ojeda v. Autoridad de Energía Eléctrica, 755 F.3d 711, 722 n.8 (1st Cir. 2014). Motive is generally irrelevant to an interference claim. See Hodgens v. Gen. Dynamics Corp., 44 F.3d 151');">144 F.3d 151, 159 (1st Cir. 1998). “The issue is simply whether the employer provided its employee the entitlements set forth in the FMLA-for example, a twelve-week leave or reinstatement after taking a medical leave.” Id. “To meet his or her burden in an interference with substantive rights claim, a plaintiff need only show, by a preponderance of the evidence, entitlement to the disputed leave[.]” Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 331 (1st Cir. 2005).

(1) The Notice Requirement

Hannaford does not dispute the first four elements. See ECF No. 21; ECF No. 31. Nevertheless, Kempton focuses her interference argument on the fourth element, the notice requirement, arguing that she put Hannaford on notice that she required an extension of her approved intermittent FMLA leave beyond May 2012 when she continued to take approved absences to care for her husband, as evidenced by the numerous “call-in reports” dating from as late as August 2012 to October 2012. ECF No. 27 at 16 (citing ECF No. 28-37 to ECF No. 28-44). Since Hannaford does not dispute that Kempton satisfies the FMLA notice requirement element, see ECF No. 31 at 1-2, I consider it satisfied for summary judgment purposes, and my focus is on the fifth element regarding whether Kempton was denied FMLA benefits to which she was entitled.[3]

(2) Denial of FMLA Benefits

Kempton cannot establish the fifth prima facie element, i.e., that Hannaford denied her FMLA benefits to which she was entitled. Kempton admitted multiple times during her deposition that Hannaford granted her FMLA leave whenever she needed it, including after her leave period expired in May 2012:

Q: [I]s it fair to say that after going through your various requests in 2011 and 2012 for FMLA leave that you became familiar with the procedures of the company and ...

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